lJillllU:JIJl!!liillil!;lll 


.    jQPINION       ^    '•'-  9  rr 

* 

OF 

JOHN   H.   GILMER 

ON    THE 

CONSCRIPTION  ACT. 


On  the  16th  day  of  April,  18G2,-  the  Congress  of 
the  Confederate  States  passed  u  law  known  as  the 
Conscript  Act.  In  the  first  section  of  that  act  the 
following  proviso  was  inserted  : 

^^  Provided,  further,  That  all  persons  under  the 
age  of  18  years  or  over  the  age  of  35  years,  who 
are  now  enrolled  in  the  military  service  of  the  Con- 
federate States,  in  the  regiments,  squadrons,  bat- 
talions and  companies  hereafter  to  be  re-organized, 
shall  be  required  to  remain  in  their  respective  com- 
panies, squadrons,  battalions  and  regiments  for 
ninety  days,  unless  their  places  shall  be  sooner  sup- 
1 


plied  by  other  recruits,  not  now  in  tbe  service,  ^^'ho 
are  between  the  ages  of  18  aixl  35  years.  And 
all  laws  and  parts  of  laws  providing  for  the  re- 
organization of  volunteers,  and  the  organization 
thereof  into  companies,  squadrons,  battalions  and 
regiments,  shall  be,  and  the  same  are  hereby,  re- 
pealed." 

Soon  after  the  passage  and  promulgation  of  this 
law,  the  Secretary  at  War  announced  his  interpre- 
tation of  its  various  sections  and  provisions  as  they 
were  to  be  exemplified  in  their  practical  operation 
upon  the  parties  designed  to  be  affected  by  them. 
Among  numerous  others,  the  following  is  found : 

"  When  any  company,  now  in  service  for  twelve 
mo7ith8,  shall,  before  the  16th  day  of  July  next^ 
attain  the  maximum  number  prescribed  by  this  act, 
without  including  the  men  under  18  and  over  35 
years  of  age,  all  such  men  may  be  discharged,  and 
such  of  them  as  remain  in  service  on  the  said  day 
will,  upon  their  application,  be  then  discharged, 
whether  such  maximum  is  attained  or  not." 

Thus  stands  the  law  as  expounded  by  the  Secre- 
tary at  War,  and  intended  as  an  accompanying 
expose  of  his  views  on  its  practical  operations.     It 


will  be  seen  tliat  the  Secretary  of  War  only  in- 
cludes the  tivelve  months'  men,  and  thus,  by  impli- 
cation, excludes  "all  persons"  other  than  twelve 
months'  men — evidently  included,  and,  in  my 
opinion,  expressly  designed  io  be  included,  in  the 
Conscript  Act,  as  before  recited. 

The  language  used  in  the  Act  of  Congress  is 
very  explicit.,  and  it  would  seem  difficult  to  place 
any  other  construction  on  it  than  what  is  so  plainly 
and  with  marked  distinctness  expressed  in  the  very 
clear  and  precise  language  employed  by  its  framers. 
It  is — "  That  all  persons,  under  the  age  of  18  and 
over  the  age  of  35  years,  <bcho  are  noto  enrolled  in 
the  military  service  of  the  Confederate  States,  shall 
be  required  to  remain  for  ninett/  days,  unless  their 
places  can  be  sooner  supplied  hy^other  recruits^  not 
notv  in  tlie  service,  who  are  between  the  ages  of  1% 
und  35  years.'^ 

No  language  can  be  more  explicit  than  this.  To 
my  mind  it  admits  of  no  doubt;  and  it  is  but  faiv 
to  presume  that  the  Secretary  at  AYar,  in  his  ex- 
position, could  not  have  intended  to  embrace  "  all 
persons  "  so  distinctly  included  in  this  proviso,  in- 
serted in  the   Conscript   law.     It  would  seem  he 


must  have  intended  only  to  refer  to  twelve  months' 
men,  and  to  have  no  allusion  to  "all  persons"  em- 
braced in  the  law  of  Congress. 

This  would  be  the  only  construction  which  could 
fairly  be  placed  on  the  exposition  of  the  Secretary 
at  War,  but  for  the  recent  order  published  by  the 
Adjutant-General,  revoking  General  Order,  No.  44, 
and  announcing  that  all  persons  who  have  enlisted 
for  the  war,  who  were  under  the  age  of  18  and 
over  the  age  of  35  years,  would  not  be  discharged 
on  the  16th  of  July,  1862.  Had  this  order  con- 
tained the  qualification  that  the  persons  designated 
in  it,  who  had  enlisted  for  the  war,  since  the  IQth 
day  of  April,  1862,  would  not  be  discharged  on 
the  16th  day  of  July,  1862,  it  would  have  been 
consistent  with,  and  ancillary  to,  the  Conscript  act. 
But,  as  the  order  stands  and  is  directed  to  be  en- 
forced, there  is  a  painful  conflict  between  it  and 
the  law  of  Congress. 

My  opinion  has  been  asked  by  various  persons 
as  to  the  validity  and  legality  of  this  order ;  also, 
whether  this  order  divests  the  persons  designated 
and  designed  to  be  embraced  in  the  proviso  of  the 
Conscript  law  of  their  rights   and   privileges,   as 


declared  and  defined  in  the  law  of  Congress?  In 
other  words,  are  the  persons  under  18  and  over  35 
years,  who  had  enlisted  for  the  war,  and  were  en- 
rolled previous  to  the  16th  of  April,  1862,  ex- 
cluded, by  reason  of  the  interpolating  order  of  the 
"Adjutant-General,  from  the  specific  remedial  effi- 
cacy of  the  act  of  Congress  ? 

On  this  subject,  after  the  most  solicitous  and  ma- 
tured consideration,  I  have  not  a  shadow  of  doubt. 
I  am  perfectly  clear  and  distinct  in  the  opinion  that 
this  order  of  the  Adjutant-General  is  in  direct  and 
unmistakable  conflict  with  the  law  of  Congress,  and 
also  that  there  is  no  power,  either  in  the  Adjutant- 
General,  the  Secretary  at  War,  the  President,  or 
all  combined,  to  interpolate  any  act  of  Congress,  or 
to  revoke,  modify,  or  extend  its  provisions,  in  the 
absence  of  such  power  created  and  bestowed  by  the 
express  provisions  of  the  law  itself,  or  a  power  de- 
rived from,  and  distinctly  traceable  to,  an  express 
grant  of  such  power  in  the  Constitution.  I  have 
not  been  able  to  discover  anywhere  the  grant  of 
such  a  power,  even  by  the  most  latitudinous  implica- 
tion. I  am,  therefore,  constrained  to  give  it  as  my 
deliberate  opinion,  that  the  order  in  question  can- 


9  R  Q  Q  1 


6 

not  legally  divest,  impair,  or  curtail  any  one  right 
or  privilege  imparted  to  the  certain  designated  per- 
sons in  the  Conscript  act. 

The  rights  and  privileges  guaranteed  to  "  all 
persons"  embraced  in  this  limitation  and  qualifica- 
tion of  tlie  main  body  of  the  act^  are  paramount, 
and,  so  long  as  the  proviso  stands,  are  superior  to 
any  limitation  or  qualification  sought  to  be  derived 
from  the  body  of  the  act  by  implication  or  liberal 
construction.  The  'proviso  takes  precedence  and 
over-rides  the  purview ;  and,  in  case  of  a  conflict, 
the  purview  must  give  place  to  the  proviso.  As  a 
necessary  legal  deduction,  any  and  all  rights,  privi- 
leges and  immunities  distinctly  created  by  express 
enactment  in  the  proviso,  will  prevail  over  all  quali- 
fications, conditions  or  conflicting  enactments  in  the 
main  body  of  the  act. 

It  is,  however,  needless  to  discuss  such  questions 
here,  or  to  cite  the  numerous  authorities  in  point. 
I  prefer  giving  my  opinion,  as  asked  for,  without 
entering  upon  any  elaborate  consideration  of  the 
law,  its  spirit,  reason  and  purpose.  Suffice  it  to 
say,  the  law  of  Congress  is  explicit  in  its  provi- 
sions, in  its  limitations,  in  its  conditions,  and  in  its 


^\ 


extent  and  scope,  both  as  to  persons  and  time  ;  and 
that,  in  my  opinion,  the  order  of  the  Adjutant- 
General  is  in  conflict  with  and  viohative  of  both  the 
letter,  spirit,  scope  and  policy  of  the  law.  With 
this  opinion,  I  reserve  my  reasons  and  authorities 
for  another  occasion,  should  it  arise. 

It  is  proper,  however,  in  this  connection,  that  I 
should  here  add,  the  order  of  the  Adjutant-General 
is,  according  to  all  rules  of  law,  both  civil  and  mili- 
tary, paramount,  and  of  binding  force  until  it  is  re- 
voked, reversed  or  modified  ;  and  should  challenge 
the  obedient  acquiescence  of  every  one  affected  or 
designed  to  be  affected  by  it.  The  first  and  highest 
diift/  of  the  soldier  is  implicit  obedience  to  the  or- 
ders of  his  superior  in  command.  However  arbi- 
trary or  contrary  to  law,  as  an  order  emanating 
from  the  proper  source,  it  should  be  obeyed  in  good 
faith  until  the  proper  remedy  is  properly  applied. 

In  this  case  there  is  a  remedy,  notwithstanding 
the  suspension  of  the  habeas  corpus  act.  Let  the 
proper  "application"  be  made,  on  the  IGth  July, 
as  required,  and,  if  that  fails,  then  a  proper  and 
respectful  appeal  to  the  Secretary  at  War;  and,  if 
that  fails,  Congress  will  not  be  deaf  to  the  "  appli- 


8 

cation."  In  the  meantime,  I  cou^nsel  the  most  reg- 
ular, orderly  and  exact  obedience  to  the  orders 
issued,  or  to  be  issued  in  connection  -with  this  mat- 
ter, until  the  proper  remedies  can  be  invoked  and 
applied  in  the  regular  and  proper  way.  Nor  is  this 
all.  It  is  my  duty  to  say  to  you,  that  however 
harsh,  or  even  unjust,  this  order  may  seem,  to-  dis- 
obey it,  or  disregard  any  enforcing  order  emanaiting 
from  the  proper  officer,  will  be,  in  lazv,  a  revolt^ 
and  will  merit  summary  punishment. 
Respectfully, 

JOHN  H.  GILMER. 

Capt.  R.  E.  Kyle  and  others. 

Richmond,  July  8,  1862. 


Hollinger  Corp. 
pH8.5 


